97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5182

 

Introduced 2/8/2012, by Rep. Monique D. Davis

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/110-5  from Ch. 38, par. 110-5

    Amends the Code of Criminal Procedure of 1963. Provides that if a defendant is charged with a non-violent crime, the court shall not impose bail in an amount that exceeds 10% of the annual salary of the defendant. Provides that if the court determines that a defendant charged with a non-violent crime is indigent, the court shall release the defendant on his or her own recognizance. Defines "non-violent crime".


LRB097 17831 RLC 63049 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB5182LRB097 17831 RLC 63049 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Section 110-5 as follows:
 
6    (725 ILCS 5/110-5)  (from Ch. 38, par. 110-5)
7    Sec. 110-5. Determining the amount of bail and conditions
8of release.
9    (a) In determining the amount of monetary bail or
10conditions of release, if any, which will reasonably assure the
11appearance of a defendant as required or the safety of any
12other person or the community and the likelihood of compliance
13by the defendant with all the conditions of bail, the court
14shall, on the basis of available information, take into account
15such matters as the nature and circumstances of the offense
16charged, whether the evidence shows that as part of the offense
17there was a use of violence or threatened use of violence,
18whether the offense involved corruption of public officials or
19employees, whether there was physical harm or threats of
20physical harm to any public official, public employee, judge,
21prosecutor, juror or witness, senior citizen, child or
22handicapped person, whether evidence shows that during the
23offense or during the arrest the defendant possessed or used a

 

 

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1firearm, machine gun, explosive or metal piercing ammunition or
2explosive bomb device or any military or paramilitary armament,
3whether the evidence shows that the offense committed was
4related to or in furtherance of the criminal activities of an
5organized gang or was motivated by the defendant's membership
6in or allegiance to an organized gang, the condition of the
7victim, any written statement submitted by the victim or
8proffer or representation by the State regarding the impact
9which the alleged criminal conduct has had on the victim and
10the victim's concern, if any, with further contact with the
11defendant if released on bail, whether the offense was based on
12racial, religious, sexual orientation or ethnic hatred, the
13likelihood of the filing of a greater charge, the likelihood of
14conviction, the sentence applicable upon conviction, the
15weight of the evidence against such defendant, whether there
16exists motivation or ability to flee, whether there is any
17verification as to prior residence, education, or family ties
18in the local jurisdiction, in another county, state or foreign
19country, the defendant's employment, financial resources,
20character and mental condition, past conduct, prior use of
21alias names or dates of birth, and length of residence in the
22community, the consent of the defendant to periodic drug
23testing in accordance with Section 110-6.5, whether a foreign
24national defendant is lawfully admitted in the United States of
25America, whether the government of the foreign national
26maintains an extradition treaty with the United States by which

 

 

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1the foreign government will extradite to the United States its
2national for a trial for a crime allegedly committed in the
3United States, whether the defendant is currently subject to
4deportation or exclusion under the immigration laws of the
5United States, whether the defendant, although a United States
6citizen, is considered under the law of any foreign state a
7national of that state for the purposes of extradition or
8non-extradition to the United States, the amount of unrecovered
9proceeds lost as a result of the alleged offense, the source of
10bail funds tendered or sought to be tendered for bail, whether
11from the totality of the court's consideration, the loss of
12funds posted or sought to be posted for bail will not deter the
13defendant from flight, whether the evidence shows that the
14defendant is engaged in significant possession, manufacture,
15or delivery of a controlled substance or cannabis, either
16individually or in consort with others, whether at the time of
17the offense charged he was on bond or pre-trial release pending
18trial, probation, periodic imprisonment or conditional
19discharge pursuant to this Code or the comparable Code of any
20other state or federal jurisdiction, whether the defendant is
21on bond or pre-trial release pending the imposition or
22execution of sentence or appeal of sentence for any offense
23under the laws of Illinois or any other state or federal
24jurisdiction, whether the defendant is under parole or
25mandatory supervised release or work release from the Illinois
26Department of Corrections or any penal institution or

 

 

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1corrections department of any state or federal jurisdiction,
2the defendant's record of convictions, whether the defendant
3has been convicted of a misdemeanor or ordinance offense in
4Illinois or similar offense in other state or federal
5jurisdiction within the 10 years preceding the current charge
6or convicted of a felony in Illinois, whether the defendant was
7convicted of an offense in another state or federal
8jurisdiction that would be a felony if committed in Illinois
9within the 20 years preceding the current charge or has been
10convicted of such felony and released from the penitentiary
11within 20 years preceding the current charge if a penitentiary
12sentence was imposed in Illinois or other state or federal
13jurisdiction, the defendant's records of juvenile adjudication
14of delinquency in any jurisdiction, any record of appearance or
15failure to appear by the defendant at court proceedings,
16whether there was flight to avoid arrest or prosecution,
17whether the defendant escaped or attempted to escape to avoid
18arrest, whether the defendant refused to identify himself, or
19whether there was a refusal by the defendant to be
20fingerprinted as required by law. Information used by the court
21in its findings or stated in or offered in connection with this
22Section may be by way of proffer based upon reliable
23information offered by the State or defendant. All evidence
24shall be admissible if it is relevant and reliable regardless
25of whether it would be admissible under the rules of evidence
26applicable at criminal trials. If the State presents evidence

 

 

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1that the offense committed by the defendant was related to or
2in furtherance of the criminal activities of an organized gang
3or was motivated by the defendant's membership in or allegiance
4to an organized gang, and if the court determines that the
5evidence may be substantiated, the court shall prohibit the
6defendant from associating with other members of the organized
7gang as a condition of bail or release. For the purposes of
8this Section, "organized gang" has the meaning ascribed to it
9in Section 10 of the Illinois Streetgang Terrorism Omnibus
10Prevention Act.
11    (b) The amount of bail shall be:
12        (1) Sufficient to assure compliance with the
13    conditions set forth in the bail bond, which shall include
14    the defendant's current address with a written
15    admonishment to the defendant that he or she must comply
16    with the provisions of Section 110-12 regarding any change
17    in his or her address. The defendant's address shall at all
18    times remain a matter of public record with the clerk of
19    the court.
20        (2) Not oppressive.
21        (3) Considerate of the financial ability of the
22    accused.
23        (4) When a person is charged with a drug related
24    offense involving possession or delivery of cannabis or
25    possession or delivery of a controlled substance as defined
26    in the Cannabis Control Act, the Illinois Controlled

 

 

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1    Substances Act, or the Methamphetamine Control and
2    Community Protection Act, the full street value of the
3    drugs seized shall be considered. "Street value" shall be
4    determined by the court on the basis of a proffer by the
5    State based upon reliable information of a law enforcement
6    official contained in a written report as to the amount
7    seized and such proffer may be used by the court as to the
8    current street value of the smallest unit of the drug
9    seized.
10    (b-1) If a defendant is charged with a non-violent crime,
11the court shall not impose bail in an amount that exceeds 10%
12of the annual salary of the defendant. If the court determines
13that a defendant charged with a non-violent crime is indigent,
14the court shall release the defendant on his or her own
15recognizance. For the purposes of this subsection (b-1),
16"non-violent crime" means an offense that is not a forcible
17felony or a violent crime as defined in Section 3 of the Rights
18of Crime Victims and Witnesses Act.
19    (b-5) Upon the filing of a written request demonstrating
20reasonable cause, the State's Attorney may request a source of
21bail hearing either before or after the posting of any funds.
22If the hearing is granted, before the posting of any bail, the
23accused must file a written notice requesting that the court
24conduct a source of bail hearing. The notice must be
25accompanied by justifying affidavits stating the legitimate
26and lawful source of funds for bail. At the hearing, the court

 

 

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1shall inquire into any matters stated in any justifying
2affidavits, and may also inquire into matters appropriate to
3the determination which shall include, but are not limited to,
4the following:
5        (1) the background, character, reputation, and
6    relationship to the accused of any surety; and
7        (2) the source of any money or property deposited by
8    any surety, and whether any such money or property
9    constitutes the fruits of criminal or unlawful conduct; and
10        (3) the source of any money posted as cash bail, and
11    whether any such money constitutes the fruits of criminal
12    or unlawful conduct; and
13        (4) the background, character, reputation, and
14    relationship to the accused of the person posting cash
15    bail.
16    Upon setting the hearing, the court shall examine, under
17oath, any persons who may possess material information.
18    The State's Attorney has a right to attend the hearing, to
19call witnesses and to examine any witness in the proceeding.
20The court shall, upon request of the State's Attorney, continue
21the proceedings for a reasonable period to allow the State's
22Attorney to investigate the matter raised in any testimony or
23affidavit. If the hearing is granted after the accused has
24posted bail, the court shall conduct a hearing consistent with
25this subsection (b-5). At the conclusion of the hearing, the
26court must issue an order either approving of disapproving the

 

 

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1bail.
2    (c) When a person is charged with an offense punishable by
3fine only the amount of the bail shall not exceed double the
4amount of the maximum penalty.
5    (d) When a person has been convicted of an offense and only
6a fine has been imposed the amount of the bail shall not exceed
7double the amount of the fine.
8    (e) The State may appeal any order granting bail or setting
9a given amount for bail.
10    (f) When a person is charged with a violation of an order
11of protection under Section 12-3.4 or 12-30 of the Criminal
12Code of 1961,
13        (1) whether the alleged incident involved harassment
14    or abuse, as defined in the Illinois Domestic Violence Act
15    of 1986;
16        (2) whether the person has a history of domestic
17    violence, as defined in the Illinois Domestic Violence Act,
18    or a history of other criminal acts;
19        (3) based on the mental health of the person;
20        (4) whether the person has a history of violating the
21    orders of any court or governmental entity;
22        (5) whether the person has been, or is, potentially a
23    threat to any other person;
24        (6) whether the person has access to deadly weapons or
25    a history of using deadly weapons;
26        (7) whether the person has a history of abusing alcohol

 

 

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1    or any controlled substance;
2        (8) based on the severity of the alleged incident that
3    is the basis of the alleged offense, including, but not
4    limited to, the duration of the current incident, and
5    whether the alleged incident involved physical injury,
6    sexual assault, strangulation, abuse during the alleged
7    victim's pregnancy, abuse of pets, or forcible entry to
8    gain access to the alleged victim;
9        (9) whether a separation of the person from the alleged
10    victim or a termination of the relationship between the
11    person and the alleged victim has recently occurred or is
12    pending;
13        (10) whether the person has exhibited obsessive or
14    controlling behaviors toward the alleged victim,
15    including, but not limited to, stalking, surveillance, or
16    isolation of the alleged victim or victim's family member
17    or members;
18        (11) whether the person has expressed suicidal or
19    homicidal ideations;
20        (12) based on any information contained in the
21    complaint and any police reports, affidavits, or other
22    documents accompanying the complaint,
23the court may, in its discretion, order the respondent to
24undergo a risk assessment evaluation conducted by an Illinois
25Department of Human Services approved partner abuse
26intervention program provider, pretrial service, probation, or

 

 

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1parole agency. These agencies shall have access to summaries of
2the defendant's criminal history, which shall not include
3victim interviews or information, for the risk evaluation.
4Based on the information collected from the 12 points to be
5considered at a bail hearing for a violation of an order of
6protection, the results of any risk evaluation conducted and
7the other circumstances of the violation, the court may order
8that the person, as a condition of bail, be placed under
9electronic surveillance as provided in Section 5-8A-7 of the
10Unified Code of Corrections.
11(Source: P.A. 95-773, eff. 1-1-09; 96-688, eff. 8-25-09;
1296-1551, eff. 7-1-11.)